NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 09a0280n.06
                                   Filed: April 13, 2009

                                            No. 07-3067

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                       )
                                                )
       Plaintiff-Appellee,                      )
                                                )
v.                                              )   ON APPEAL FROM THE UNITED
                                                )   STATES DISTRICT COURT FOR THE
LUIS ARIAS,                                     )   NORTHERN DISTRICT OF OHIO
                                                )
       Defendant-Appellant.                     )
                                                )   OPINION


       Before: SILER, GILMAN, and KETHLEDGE, Circuit Judges.

       RONALD LEE GILMAN, Circuit Judge. Luis Arias pled guilty in September 2006 to two

counts of an indictment relating to his role in a drug conspiracy. He now appeals his 151-month

sentence, arguing that the district court erred by classifying him as a career offender and by imposing

an unreasonable sentence. The government has filed a motion asking us to dismiss the appeal

because, as part of the plea agreement, Arias waived the right to appeal his sentence. For the reasons

set forth below, the government’s motion to dismiss Arias’s appeal is GRANTED.


                                        I. BACKGROUND

       This case arose from a drug conspiracy involving Arias and 23 codefendants. Arias pled

guilty to two of the multiple counts against him. One of the relevant counts alleged a conspiracy to

possess and distribute more than five kilograms of cocaine and marijuana, and the other accused him
No. 07-3067
United States v. Arias

of possessing with the intent to distribute 500 grams or more of cocaine, all in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A), and 846. The government agreed to dismiss the remaining counts. In

addition, the government agreed to “recommend that the Court impose a sentence within the range

determined pursuant to the advisory United States Sentencing Guidelines . . . in accordance with the

computations and stipulations set forth below [in the agreement].” (Plea Agreement at ¶ 5).

       Regarding Arias’s base offense level, the parties “agree[d] and stipulate[d]” that the relevant

drug quantity was “at least 15 kilograms, but less than 50 kilograms” of cocaine, “which corresponds

to a U.S.S.G. base offense level of 34.” The parties further agreed that “this offense level should be

increased by two (2) levels [to 36] pursuant to U.S.S.G. § 3B1.1(c) because [Arias] was an organizer,

leader, manager, or supervisor in the conspiracy.” (Plea Agreement at ¶ 8) From this stipulated

starting point of 36, the government agreed to “recommend a three-level reduction in the Sentencing

Guideline calculation” for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. (Plea

Agreement at ¶ 9) In an addendum to the plea agreement, the government also agreed to move for

a reduction in Arias’s offense level of up to five additional levels “to credit [him] for substantial

assistance” under U.S.S.G. § 5K1.1. (Addendum at ¶ 5) The stipulated final offense level under the

plea agreement was thus 28.

       Arias’s criminal history category was left for future determination. He accordingly

acknowledged his “understand[ing] that his criminal history category w[ould] be determined by the

Court after an investigation by the United States Probation Office.” (Plea Agreement at ¶ 10) Arias

further acknowledged through the plea agreement his “understand[ing] that any recommendations

contained [in the agreement] are not binding on the Court, and the Court may impose any sentence

                                                 -2-
No. 07-3067
United States v. Arias

provided by law.” He further conceded that “if the Court impose[d] a sentence different from what

is recommended by the government, [he would have] no right to withdraw his guilty plea.” (Plea

Agreement at ¶ 5)

       Finally, Arias expressly waived his right “to appeal the conviction or sentence in this case,

including the appeal right conferred by 18 U.S.C. § 3742,” except that he

       expressly reserve[d] the right to appeal (a) any punishment in excess of the statutory
       maximum; and (b) any sentence to the extent it exceeds the maximum of the
       sentencing range determined under the advisory Sentencing Guidelines in accordance
       with the stipulations and computations in [the] Agreement, using the Criminal
       History Category found applicable by the Court.

(Plea Agreement at ¶ 13) In the addendum to the plea agreement, Arias once again conceded that

he would “not be permitted to withdraw his agreement to plead guilty” if the district court rejected

the parties’ stipulations. (Addendum at ¶ 9)

       Arias was sentenced in September 2006. The district court accepted all of the parties’

stipulations and agreed that the appropriate base offense level was 34. (Sentencing Tr. at 10) But

because the district court adopted the Probation Office’s determination that Arias was a career

offender, the district court increased the starting offense level to 37. See U.S.S.G. § 4B1.1 (setting

the offense level for career offenders at 37 where the crime of conviction carries a statutory

maximum sentence of life imprisonment). This resulted in a final offense level (after the agreed-

upon reduction and downward departure) of 29—one level higher than the level 28 that the parties

had stipulated to in the plea agreement. (Id.) Arias’s career-offender designation led to a criminal

history category of VI, with the resulting advisory Guidelines range being between 151 and 188

months of imprisonment. The district court sentenced Arias to 151 months’ imprisonment, the

                                                -3-
No. 07-3067
United States v. Arias

bottom of the applicable range. (Id. at 19) Arias now appeals, asserting that the district court erred

in classifying him as a career offender and in fashioning a sentence that is substantively

unreasonable.


                                   II. MOTION TO DISMISS

       The government has moved for the dismissal of Arias’s appeal on the basis of the waiver

provision in his plea agreement. We review the validity of appellate-waiver provisions de novo.

United States v. McGilvery, 

, 362 (6th Cir. 2005). Such provisions are enforceable so

long as the plea was voluntary and the colloquy was proper under Rule 11 of the Federal Rules of

Criminal Procedure. See 

Arias argues that because “there is no evidence to suggest

anyone advised [him] of the possibility he could be classified as a career offender and therefore

exposed to significantly enhanced penalties[,]” his “waiver was not knowing[], intelligent[], and

voluntary.” See United States v. Fleming, 

, 764 (6th Cir. 2001) (“The sine qua non of

a valid waiver is that the defendant enter into the agreement knowingly and voluntarily.” (citing

Town of Newton v. Rumery, 

, 393 (1987))).

       But, just as in Fleming, “[t]he record here clearly demonstrates that [Arias] understood the

waiver contained in the plea agreement and consented to it voluntarily.” See 

change-of-

plea proceeding, the district court verified Arias’s understanding “that there [was] no agreement

about what [his] criminal history would be.” (Plea Tr. at 13) The court also asked Arias whether

he “g[a]ve up [his] right to appeal [his] sentence, except if it exceeds the statutory maximum or it

is an upward departure from the range set out in [the] plea agreement.” (Id.) Arias answered


                                                -4-
No. 07-3067
United States v. Arias

affirmatively. And Arias repeatedly confirmed his awareness that, whatever the sentence chosen by

the district court, he could not withdraw his guilty plea. No suggestion appears in the record that

Arias’s decisions to plead guilty and to waive his right to appeal were anything but fully informed

and voluntary.

       The only remaining question, then, is whether Arias’s sentence is appealable because it fits

within either of the two exceptions to the waiver provision. Because Arias’s 151-month sentence

does not exceed the statutory maximum of life imprisonment, he may appeal only “to the extent [that

his sentence] exceeds the maximum of the sentencing range determined under the advisory

Sentencing Guidelines in accordance with the stipulations and computations in [the] Agreement,

using the Criminal History Category found applicable by the Court.” (Plea Agreement at ¶ 13)

       As discussed above, the parties’ “stipulations and computations” arrived at a final offense

level of 28 and left the criminal history category to be determined later. The district court did not

apply the offense level agreed upon by the parties in light of its finding that the career-offender

provision applied to Arias, but instead used a final offense level of 29 to determine the sentence.

Arias now argues that the career-offender designation does not apply to him. But he voluntarily

agreed not to appeal any sentence imposed by the court—even one arguably based on an erroneous

interpretation of the Guidelines—so long as it did not exceed the maximum possible sentence that

corresponds to the stipulated offense level of 28. See United States v. McNamee, No. 01-3384, 

, at *3 (6th Cir. Feb. 19, 2003) (holding that a waiver of the right to appeal pursuant to

18 U.S.C. § 3742 includes a waiver of the right to challenge a career-offender enhancement).



                                                -5-
No. 07-3067
United States v. Arias

       In essence, Arias agreed not to appeal any sentence less than 175 months of imprisonment,

the top of the range for an offense level of 28 and a criminal history category of VI. Because Arias’s

sentence is 151 months, he is precluded from appealing despite his belief that the court erred in

designating him as a career offender.

       When Arias entered his plea agreement, he expected that he would fall within a lower offense

level and criminal history category. He was unpleasantly surprised by the court’s conclusion that

the career-offender provision applied to him. But the unexpected change did not increase Arias’s

sentence beyond the range contemplated in the waiver provision of his plea agreement. We therefore

have no basis to consider his argument that he is not a career offender, and we have no choice but

to dismiss his appeal.


                                        III. CONCLUSION

       For all of the reasons set forth above, the government’s motion to dismiss Arias’s appeal is

GRANTED.




                                                -6-